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ADQ v QBE Insurance Ltd [2019] NSWDRS MR 094

Overview

Jurisdiction:  Merit Review

Catchwords  Required period of notice – finding of minor injury-  discontinuation of payments

Legislation cited: Motor Accident Injuries Act 2017: Section 3.19; Section 8.10; Schedule 2(1)(e)

Cases cited:  N/A

Text Cited:  N/A

Parties:

  • ADQ – Claimant
  • QBE - Insurer

Disclaimer: This decision has been edited to remove all Unique Personal Identification including the name of the Claimant.

Merit review certificate

View here

Issued under section 7.13(4) of the Motor Accident Injuries Act 2017.

Claimant

ADQ

Insurer

QBE

Claim number360005278601
Date of merit review certificate11 February 2019

Reviewable decision-maker

Sophy Mothakunnel

Date of Reviewable decision

8 November 2018

Our Reference

10074006

Merit Reviewer

Rachel Brittliff

Merit reviewer's determination

This determination relates to a merit review matter, which is a reviewable decision under Schedule 2(1)(e) of the Motor Accident Injuries Act 2017, about whether the insurer has given the required period of notice under section 3.19 (Notice required before discontinuing or reducing weekly payments) before discontinuing or reducing weekly payments of statutory benefits.

My determination of the Merit Review is as follows:

  • The reviewable decision is affirmed.

A brief statement of my reasons for this determination are attached to this certificate.

Rachel Brittliff

Merit Reviewer, Dispute Resolution Service

Reasons

  1. ADQ was involved in a motor vehicle accident on 30 April 2018. He received weekly payments of statutory benefits from the Insurer following the accident.
  2. The Insurer wrote to ADQ in a letter dated 8 November 2018 to advise him that his weekly statutory benefits under the Motor Accidents Injuries Act 2017 (“the Act”) would cease on 5 December 2018.
  3. The Insurer stated that ADQ ’s injury had been assessed as a “minor injury” and that his entitlement to weekly statutory benefits ceased after 26 weeks from the date of the accident.
  4. ADQ  applied for an internal review of the Insurer’s decision. ADQ  disputed that the Insurer was entitled to determine whether his injury was a minor injury for the purpose of the Act and considered that, as a consequence of the invalid decision, the notice following on from the decision was void.
  5. The Insurer conducted an internal review and made a decision on 12 December 2018. The Insurer affirmed the original decisions.
  6. ADQ  made an application for merit review. The application was received by the Authority on 11 January 2019 and has been accepted.

Documents and information

7. I have considered the documents provided in the application and the reply and any further information provided by the parties.

Legislation

8.  In conducting my review I have considered the following legislation and guidelines:

  1. Motor Accident Injuries Act 2017 (NSW) (“the Act”)
  2. Motor Accident Guidelines effective 13 July 2018 (“the Guidelines”)
  3. Motor Accident Injuries Regulation 2017 (NSW) (“the Regulation”)

Submissions

Claimant

  1. In his application for a merit review, ADQ  seeks a review of the Insurer’s notice to discontinue his weekly statutory benefits. ADQ  states that the notice issued by the Insurer on 8 November 2018 alleging minor injury is “null and void” because it breaches clause 5.6 of the Guidelines.
  2. On 7 February 2019, ADQ ’s legal representative, made the following further submission: “We confirm the injured person did not receive weekly payments of statutory benefits for a continuous period for at least 4 weeks.  As such section 3.19 is not applicable and the insurer is not required to provide notice of discontinuance of weekly benefits”.

Insurer

  1. It disputes that the liability notice dated 8 November 2018 is null and void. Consequently, the allegation that it failed to provide appropriate notice of discontinuation as required by section 3.19 of the Act is also disputed.
  2. It provided notice on 8 November 2018 that statutory benefits were ceasing due to the minor injury assessment. In accordance with section 3.19 of the Act, it discontinued statutory benefits after providing the required notice period, being 4 weeks during the second entitlement period.
  1. ADQ  has requested a merit review of the Insurer’s notice of discontinuation of payments. The Authority’s power to conduct such a review is conferred in Schedule 2(1)(e) of the Act which states that the following matters are declared to be merit review matters for the purposes of Part 7:

    Whether the insurer has given the required period of notice under section 3.19 (Notice required before discontinuing or reducing weekly payments) before discontinuing or reducing weekly payments of statutory benefits.

  2. Section 3.19 of the Act states:

    (1)   If an injured person has received weekly payments of statutory benefits under this Division for a continuous period of at least 4 weeks, the insurer must not discontinue payment, or reduce the amount, of the statutory benefits without first giving the person not less than the required period of notice of intention to discontinue payment of the statutory benefits or to reduce the amount of the statutory benefits.

    Maximum penalty: 50 penalty units.

    (2)   The required period of notice for the purposes of this section is:

    (a)   when the discontinuation or reduction is during the first entitlement period—2 weeks, or

    (b)   when the discontinuation or reduction is during the second entitlement period—4 weeks, or (c) when the discontinuation or reduction is after the second entitlement period—8 weeks.

    (3)   If the payment of statutory benefits to an injured person is discontinued, or the amount of statutory benefits is reduced, by an insurer in circumstances involving the commission by the insurer of an offence under subsection (1), the injured person may, whether or not the insurer has been prosecuted for the offence, recover from the insurer an amount of statutory benefits that:

    (a) if no period of notice has been given—is equal to the amount of statutory benefits, or additional statutory benefits, that would have been payable during the required period of notice if payment of the statutory benefits had not been discontinued or if the amount of statutory benefits had not been reduced, or

    (b) if less than the required period of notice has been given—is equal to the amount of statutory benefits that would have been payable during the balance of the required period of notice if payment of the statutory benefits had not been discontinued or if the amount of the statutory benefits had not been reduced.

    (4)   This section applies to any discontinuation or reduction of the amount of a payment because the injured person ceases to be entitled to the payment or to the amount of the payment under a provision of this Division.

    Reasons and findings

  3. ADQ  contends that the notice must be “null and void” because he considers that in determining the basis for the discontinuation, the Insurer fell into legal error.
  4. There is no clause within Schedule 2, item 1 of the Act that confers upon the Authority, the power to conduct a merit review in relation to an insurer’s finding that a claimant has a minor injury for the purpose of the Act.
  5. Further, there is no power to conduct a merit review where the claimant believes that a legal error has been made by an insurer when determining that statutory benefits are to be discontinued.
  6. Accordingly, in conducting this merit review, I am to determine whether the notice issued to ADQ , issued on 8 November 2018 was issued in accordance with the requirements of section

3.19 of the Act.

  1. Section 3.19(1) of the Act states:

    If an injured person has received weekly payments of statutory benefits under this Division for a continuous period of at least 4 weeks, the insurer must not discontinue payment, or reduce the amount, of the statutory benefits without first giving the person not less than the required period of notice of intention to discontinue payment of the statutory benefits or to reduce the amount of the statutory benefits”.

  2. The information provided by the Insurer to the Authority indicates that ADQ  received a single payment of $7,805.27 in respect of statutory benefit payments from the Insurer. This payment was issued on 12 November 2018.
  3. Accordingly, at no time has ADQ  received weekly payments of statutory benefits under Division 3.3 of the Act for a continuous period of at least 4 weeks.
  4. As ADQ does not fall within the class of person described in section 3.19(1) of the Act, the required periods of notice set out in section 3.19(2) of the Act do not apply to him.
  5. I therefore find that the Insurer has not failed to give the required period of notice before discontinuing ADQ ’s payments of statutory benefits.

Determination

My determination of the Merit Review is as follows:

  • The reviewable decision is affirmed

Rachel Brittliff

Merit Reviewer, Dispute Resolution Service